No, I will not wear my mask! - Ter­mi­na­tion op­tions in case of mask re­fusers

July 2021 · Estimated read time: mins

Müssen Arbeitgeber allgemein gehaltene Atteste anerkennen?

As of July 1, 2021, there is no longer a home office obligation. The mandatory requirement to provide a minimum area of 10 m² per person for each employee in office rooms for multiple employees has also been dropped. However, the issue of mandatory masks remains topical in the working world. That's because the amended SARS-CoV-2 Occupational Health and Safety Regulation, which has been extended until September 10, 2021, retains, among other things, the obligation for employers to provide their employees with at least medical face masks in the absence of other protection.

But what courses of action do employers have when employees refuse to wear a mask? In a decision not yet published (Case No.: 12 Ca 450/21), the Cologne Labor Court had to deal with a refusal to wear a mask and his extraordinary termination after an unsuccessful warning.

Refusal to carry out the order with existing mask obligation

The plaintiff employee was employed by the employer as a service technician in the field. Despite the employer's instruction to all service technicians to wear a mouth/nose covering when carrying out customer orders and the express request of a customer to the same effect, the employee refused in December 2020 to carry out the order wearing a mask. In doing so, he relied on a certificate submitted in June 2020 under the subject line "snot rag exemption." The only justification provided in the attestation was that the employee "cannot reasonably be expected to wear a non-medical everyday mask or comparable oral-nasal covering as defined in the SARS-COV-2 Containment Measures Ordinance for medical reasons."

After rejection of the certificate and renewed refusal, termination follows

The employer did not recognize this certificate due to a lack of concrete, comprehensible information. Instead, the employer again instructed the employee to wear a mouth/nose covering when carrying out the service orders, the costs of which would be borne by the employer. After the employee did not comply with this instruction either and continued to refuse to carry out the order, the employer gave him a warning. Unimpressed by this, the employee informed the employer that in future he would only carry out service orders if he did not have to wear a mask. The employer then terminated the employment relationship for cause with immediate effect or, as a precaution, with due notice period.

Cologne Labor Court: No justification for repeated refusal to work based on blanket medical certificate

The Cologne Labor Court dismissed the action for protection against dismissal. The employee had repeatedly violated his contractual duties by persistently refusing to wear the mouth-nose covering ordered by the employer and explicitly requested by the customer when performing his duties. The employee's refusal was also not justified on the basis of the medical certificate submitted. On the one hand, it was no longer current, and on the other hand, without a concrete diagnosis of the clinical picture, it was not sufficiently comprehensible to justify an exemption from the mask requirement. In addition, the seriousness of the medical restriction claimed by the employee was to be doubted, since he had submitted the certificate under the subject "snot rag exemption" and had also rejected the employer's offer of an examination by the company’s medical service.

Practical notes

The Cologne Labor Court apparently assumed - and rightly so - that employers are entitled within the scope of their right of direction to order the wearing of a mouth/nose covering during working hours. In this way, employers are not only fulfilling their duty of care towards all employees, but also their obligation under Section 2 (2) of the SARS-CoV-2 Occupational Health and Safety Ordinance. According to this, employers are obliged to provide their employees with at least medical face masks as soon as the risk assessment to be carried out in accordance with the Occupational Health and Safety Act shows that other measures do not offer sufficient protection. In this case, it even follows that employees are obliged to wear the masks provided by the employer (or at least equivalent masks).

The ruling of the labor court shows in all clarity that mask refusers who as a result do not fulfill their duties owed under their employment contract must expect consequences under employment law. After a relevant, unsuccessful warning, this can extend to extraordinary termination for cause.

In this case, employees can only save themselves if they submit a medical certificate that meets more stringent formal and content requirements: The certificate must not be several months old and must contain concrete and comprehensible information on why the employee cannot wear a mask for health reasons. With the help of the justification, employers must be able to independently check whether the requirements for a mask exemption are met. Employers should therefore not be satisfied with a general certificate without any possibility of inference.

However, employers are also well advised to clarify any doubts about the medical necessity and the seriousness of a certified mask exemption with the employee first. This can be done through an employee discussion or an offer by the employer to be examined by a company physician.

Subscribe to our newsletter